Excerpt: - motor vehicles act, 1988
[c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....ahmad, c.j.1. these two petitions both filed under article 226 of the constitution of india have been heard together as they involve the consideration of a common question of law as to the constitutional validity of substantially similar provisions made by the government of india in para 6 of their office memorandum no 33/18/62-ests (a) in the ministry of home affairs dated the 30th of november 1962 as also in rule 56(j) of the fundamental rules and by the government of orissa in para 3 of their political and services department resolution no. 7406/gen. dated the 21st of may 1963 in regard to premature compulsory retirement of a government employee. in all these provisions the normal age of superannuation has been increased from 55 years to 58 years, but subject to certain conditions, one.....

Judgment:

Ahmad, C.J.

1. These two petitions both filed under Article 226 of the Constitution of India have been heard together as they involve the consideration of a common question of law as to the constitutional validity of substantially similar provisions made by the Government of India in para 6 of their office memorandum No 33/18/62-ESTS (A) in the Ministry of Home Affairs dated the 30th of November 1962 as also in Rule 56(j) of the Fundamental Rules and by the Government of Orissa in para 3 of their Political and Services Department Resolution No. 7406/Gen. dated the 21st of May 1963 in regard to premature compulsory retirement of a Government employee. In all these provisions the normal age of superannuation has been increased from 55 years to 58 years, but subject to certain conditions, one of them being that the appointing authority may require a Government servant to retire after he attains the age of 55 years on 3 months' previous notice in writing without assigning any reason. In exercise of the power given in the one or the other of these provisions, the petitioner in each of the two cases has been ordered to retire premature at the age of 55 years. The grievance made in both the petitions is that the normal age of superannuation having been raised from 55 years to 58 years, the orders passed against the petitioners for their compulsory retirement at the age of 55 years are void. In support of this contention a number of grounds have been advanced; one of these grounds which in fact is the main ground of attack is common in both the cases, namely, that the aforesaid provision of law whereunder the orders against the petitioners have been passed are unconstitutional. The facts of the two cases, separately stated, are as follows:--

O. J. C. 208 of 1964

2. The petitioner is one Batahari Jena (at present Chief Mining Officer of the Government of Orissa). He was born on the 1st of January 1910 and entered service on the 1st November 1937, originally in the erstwhile State of Mayurbhanj. In that State he continued in service upto the 31st of December 1948. The State with effect from 1-1-49 merged in the province of Orissa and consequently the petitioner was since then first absorbed in the service of the provincial Government and thereafter in the service of the State of Orissa. In due course he was appointed by the Government of Orissa as their Chief Mining Officer and in that post he was confirmed on 11-12-62 with retrospective effect from 19-7-61. On 23-4-63 he was allowed to cross the efficiency bar, but subsequently by order No. 2(Gen.) dated the 14th of July 1964 he was served with a notice issued by the Secretary to the Government of Orissa in the Industries Department calling upon him to retire with effect from 1-1-65 in terms of the Resolution No. 7406/Gen. dated the 21st of May 1963 of the Political and Services Department. This order was challenged by the petitioner as not binding on him and he made a representation to that effect on 19-8-64 to [he State of Orissa who have been impleaded in the present application as the sole opposite party. The representation was on 24-11-64 rejected. Accordingly thereafter the petitioner has now filed the present application under Article 226 of the Constitution of India on 21-12-64 praying therein to quash the impugned order passed against him

3. It is not disputed that originally under Rule 71(a) of the Orissa Service Code, Volume I. except as otherwise provided in the other clauses of that rule the date of superannuation of a Government servant, in superior service other than a ministerial servant who was in permanent Government service on 31st March 1936, was the date on which he attained the age of 55 years. As such thereunder the petitioner would have normally retired on the 1st January 1965. But as under the aforesaid resolution of the Government of Orissa dated the 21st of May 1963 the normal age of superannuation was increased from 55 years to 58 years, the petitioner would have thereunder in the normal course continued in service upto the 1st January 1968 But the Government of Orissa, as already stated above, served the petitioner with a notice calling upon him to retire with effect from 1-1-65. This notice was admittedly issued to the petitioner by the Government of Orissa in exercise of the powers given to them by the aforesaid resolution. That is to be found in paragraph 3 of the Resolution and it reads as follows:--

'3. Notwithstanding anything contained in the preceding paragraph, the appointing authority may require a Government servant to retire after he attains the age of 55 years on three months' previous notice in writing without assigning any reason. The Government servant also may, after attaining the age of 55 years, voluntarily retire by giving three months' notice to the appointing authority The power to retire a Government servant under this provision will normally be exercised to weed out unsuitable employees after they have attained the age of 55 years.'

4. In the resolution there is one more important provision made in the concluding paragraph 7 providing that 'necessary amendments to the rules will be issued in due course.' It is not denied that no such amendments to the rules have been so far ever issued.

5. The submission made by Mr. R.N. Misra appearing for the petitioner is that despite this non-compliance of the provision made in the aforesaid paragraph 7 as to the issue of amendments to the rules, the aforesaid resolution as passed on the 21st of May 1963 has ex proprio vigore acquired the force of rule as contemplated by the proviso to Article 309 of the Constitution and so the petitioner cannot in law be denied the benefit of the provision made therein increasing the normal age of superannuation from 55 vears to 58 years. Further it is also submitted by the learned Counsel that though the resolution as to increase of the age of superannuation as passed by the Government has the force of rule within the meaning of the proviso to Article 309 of the Constitution, the exception made therein in its paragraph 3 as to premature compulsory retirement is invalid and unconstitutional for two reasons. firstly for the reason that it is in contravention of the guarantee given to the Government employees in civil service under Article 311(2) of the Constitution, and secondly for the reason that this provision when read with the other similar provisions in regard to premature compulsory retirement as laid down in Rule 71(d) of the Orissa Service Code, Volume land in Clause 2(2) of Section I of the Liberalised Pension Rules, cannot be held to be equally applicable to all persons equally situated; on the contrary the provisions made in the resolution were more stringent and harsh against the petitioner. As such the aforesaid order passed under this provision is hit both by Articles 311(2) and 14 of the Constitution and is therefore void and ultra vires.

The learned Advocate General has on the other hand contended that in the absence of any issue of the amendments to the rules as required by its paragraph 7, the resolution had no statutory force in the eye of law. Alternatively the learned Advocate General has also contended that even if it be assumed that despite the non-issue of the amendments to the rule, the resolution had acquired the force of law as provided in the proviso to Article 309 of the Constitution, the same is valid and is not hit either by Article 311(2) or by Article 14 of the Constitution. Thus the points raised in this case are three --

(1) Whether the provision made in paragraph 3 of the resolution for premature compulsory retirement is substantially a provision for removal or dismissal of a Government employee from service and as such it is hit by Article 311(2) of the Constitution:

(2) Whether for the reason of non-compliance of the direction given in paragraph 7 of the resolution for the issue of the amendments to the rules, the resolution did never acquire the force of a statutory rule as contemplated by the proviso to Article 309 of the Constitution; and

(3) Whether out of the three alternative sets of provisions simultaneously in operation for effecting premature compulsory retirement the one prejudicial to the petitioner having been adopted, the order of the Government calling upon the petitioner to retire with effect from the date as given therein is void as thereby the equal protection clause of the Constitution was violated.

O. J. C 272 of 1965

6. The petitioner in this case is one E. Venkateshwara Rao Naidu. He was born on 15-7-1910 and had been in continuous Government service from 25-3-39. On the date of this petition which was filed on 18-10-65 he held the post of Inspecting Assistant Commissioner of Income-tax, Cut-tack under the Union Government, and was governed by the Fundamental Rules. Therein Rule 56, as originally stood, provided that --

'Except as otherwise provided in the other clauses of this Rule the date of compulsory retirement of a Government servant, other than a ministerial servant, is the date on which he attains the age of 55 years.'

Normally therefore if this rule had remained unaltered and unamended he would have retired in due course on 14-7-65 But as already stated there was on 30-11-62 an office memorandum issued bearing No. 33/18/62 ESTS(A) by the Government of India, Ministry of Home Affairs providing that 'It has now been decided and the President is pleased to direct that the age of compulsory retirement of Central Government servant should be 58 years.' Under this new provision therefore he would have now retired on 14-7-68. But on 22-7-65 the petitioner was served with a notice dated 15-7-65 calling upon the petitioner to retire from service with effect from 21-10-65 on the expiry of three months from the date of service of the notice. This notice was admittedly issued in exercise of the power given by the Government of India to the appointing authority in para 6 of the office memorandum. This para 6 of the office memorandum reads as follows:--

'6. Notwithstanding anything contained in the foregoing paragraphs, the appointing authority may require a Government servant to retire after he attains the age of 59 years on three months' notice without assigning any reason. This will be in addition to the provisions already contained in rule 2(2) of the Liberalised Pension Rules 1950 to retire an officer who has completed 30 years' qualifying service and will normally be exercised to weed out unsuitable employees after they have attained the age of 55 years. The Government servant also may after attaining the age of 55 years, voluntarily retire after giving 3 months' notice to the appointing authority.'

7. Soon thereafter, on 21st July 1965 this memorandum under Notification No. F 12 (z) Ev (C)/63 dated the 21st July 1963 was followed by the Fundamental (Sixth Amendment) Rules 1965 wherein substantially all the important provisions of the memorandum were incorporated. Therein Rule 56(a) provided that 'Except as otherwise provided in this Rule, every Government servant shall retire on the day he attains the age of fifty-eight years.' But thereto a number of exceptions were added, one of them being Sub-rule (j). This Sub-rule (1) reads as follows:--

'(1) Notwithstanding anything contained in this Rule, the appropriate authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any government servant after he has attained the age of fifty-five years by giving him notice of not less than three months in writing.

Provided that nothing in this clause shall apply to a Government servant referred to in Clause (e) or (f).'

8. It is the admitted case of the parties that the notice which was served on the petitioner on 22-7-65 was issued in exercise of the power given to the appointing authority by paragraph 6 of the office memorandum. The petitioner challenged the validity of the notice and the order where-under it was issued and in protest submitted a memorial dated 12-8-65 to the Union Government through the Secretary to the Government of India, Ministry of Finance alleging that 'his right to office is being unduly interfered with and the notice should not be given effect to and that the petitioner should be continued in service till he completes his 58th year.' The memorial proved of no avail and was finally turned down as communicated to him under the letter dated 29-9-65. The petitioner therefore has now filed the present writ petition on 18-10-65 making a prayer therein for the issue of a writ or order 'directing the opposite parties not to give effect to the notice in question asking the petitioner to retire from 22-10-1965' alongwith some other ancillary reliefs. In the meantime as the prayer made in the petition for the interim stay of the operation of the notice during the pendency of the application was not allowed, the petitioner handed over charge of his office in the afternoon of 21-10-65.

9. Mr. Das appearing for the petitioner has, in support of the application, stressed only two points -- (1) that the provisions made in paragraph 6 of the office memorandum as also in Rule 56(j) of the Fundamental (Sixth Amendment), Rules 1965 as to premature compulsory retirement are in contravention of the constitutional guarantee given to Government employees in civil service under Article 311(2) of the Constitution, and as such both these provisions are unconstitutional and void in law and (2) that the notice served on the petitioner on 22-7-65 having been issued in exercise of the power given to the appointing authority in paragraph 6 of the office memorandum ceased to have any validity in law on 21-7-95 when the Fundamental (Sixth Amendment) Rules 1965 came into force. Therefore the order passed on the basis of an invalid notice was void in law. Both these contentions have been strongly challenged by Mr. D. Mohanty appearing for the opposite party.

10. Thus we find that there is a common ground taken in both the cases on behalf of the petitioners that the provisions made regarding premature compulsory retirement at the age of 55 years in the aforesaid relevant rule, resolution and memorandum without complying with the requirements of Article 311(2) of the Constitution is hit by that Article, and it is this point which has been mainly stressed in support of both the petitions. Therefore this common point is taken up first.

11. It is conceded on behalf of the petitioners in both the cases that this part of the contention advanced on their behalf is based on the assumption that the provisions made in the aforesaid rule, resolution or memorandum in regard to the premature compulsory retirement at the age of 55 years amounts in law to removal or dismissal within the meaning of these words as used in Article 311(2) of the Constitution. In other words, it is not denied that if the power given in these provisions to the appointing authority for retiring a Government servant after he attains the age of 55 years is held not to amount to removal or dismissal as contemplated in Article 311(2) of the Constitution, the contention fails. Therefore the correctness or otherwise of this part of the claim made on behalf of the petitioners depends exclusively on the consideration whether the premature compulsory retirement at the age of 55 years as provided in these provisions does or does not amount to removal or dismissal within the meaning of these words as used in Article 311(2) of the Constitution.

12. It may however be useful to note that at least for the purposes of this part of the discussion, an order of removal stands on the same footing as an order of dismissal and involves the same consequences, in fact the only difference between them being that while a servant who is dismissed is not eligible for reappointment as one who is removed. But as this subtle difference has no bearing on the present aspect of the matter we may proceed in this case on the assumption as if they have the same meaning. Broadly speaking therefore the question that arises for consideration in the background of the provision made in Article 311(2) of the Constitution is whether premature compulsory retirement of a Government servant in exercise of the power given by the aforesaid provisions amounts to any removal or not.

13. The learned Advocate General appearing for the State of Orissa and Mr. D. Mohanty appearing for the Union, of India both have vehemently urged that this part of the law on the subject now stands concluded by a series of decisions of the Supreme Court and therefore any further elaborate discussion on this point is not necessary and it should be disposed of in the light of those authorities alone. The first in the series of decisions referred to before us is the case reported in Shyamalal v. State of Uttar Pradesh, AIR 1954 SC 369. Therein the officer concerned was called upon to show cause within 3 weeks why he should not be compulsorily retired under Note 1 to Article 465A, Civil Service Regulations. This Note 1 to Article 465A, Civil Services Regulations provided that 'Government retains an absolute right to retire any officer after he has completed twenty-five years' qualifying service without giving any reasons, and no claim to special compensation on this account will be entertained. This right will not be exercised except when it is in the public interest to dispense with the further services of an officer.' The action taken against the officer under this proviso was challenged by him in a writ petition and in support thereof the two main contentions advanced were:--

(1) that compulsory retirement is nothing but removal from service and the provisions of Article 311 of the Constitution apply to the case of compulsory retirement;

(2) that Note 1 to Article 465A of the Civil Service Regulations, in so far as it confers on the Government an absolute right to retire an officer who has completed twenty-five years' qualifying service without giving any reason, is repugnant to Article 311 of the Constitution.

The Supreme Court on an elaborate discussion of the matter finally concluded therein that, 'A compulsory retirement does not amount to dismissal or removal and, therefore does not attract the provisions of Article 311 of the Constitution, and therefore the order of the President cannot be challenged on the ground that the appellant had not been afforded full opportunity of showing cause against the action sought to be taken in regard to him.'

14. This view has been since then uniformly reiterated by the Supreme Court in all the cases coming up before it on any question relating to the validity of a rule as a premature compulsory retirement vide State of Bombay v. Saubhagchand M. Doshi, AIR 1957 SC 892, Dalip Singh v. State of Punjab, AIR 1960 SC 1305, Moti Ram v. N.E. Frontier Rly. AIR 1964 SC 600, and Gurdev Singh v. State of Punjab, AIR 1964 SC 1585 which have been cited before us by the learned Advocate General. This view of the law is based on the principle that in the case of removal as in the case of dismissal some ground personal to the servant which is blame-worthy is involved, or in other words, there is a stigma attached to the servant who is removed and involves a loss of benefit already earned by him vide Paru-sotam Lal Dhingra v. Union of India, AIR 1958 SC 36. But neither of these elements is found to be present in the case of termination of service of a Government servant made in exercise of the power given by a rule relating to premature compulsory retirement. No doubt it is true that may it be a case of dismissal or removal of a permanent Government employee from service under Article 311(2) of the Constitution, or may it be a case of premature compulsory retirement under any relevant rule, the considerations which weigh with the authorities concerned are practically the same, namely, either the misconduct, or inefficiency or both of that Government servant. But as observed in the case of AIR 1957 SC 892,

'There is this difference that while in the case of retirement they merely furnish the background and the enquiry, if held --and there is no duty to hold an enquiry --is only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal, they form the very basis on which the order is made and the enquiry thereon must be formal, and must satisfy the rules of natural justice and the requirements of Article 311(2)'.

Unfortunately it appears that the invasion of the right which a permanent, servant has to remain in service until he reaches the age of superannuation was not pressed before the court and naturally the same was not examined: and when in the case of AIR 1964 SC 600 it was attempted to be raised, it was summarily rejected as it appears from the following observation made therein, --

'We may add that subsequent decisions show that the same view has been taken in respect of compulsory retirement throughout and so, that branch of the law must be held to be concluded by the series of decisions.'

Accordingly in the case of AIR 1964 SC 1585 the law relating to the termination of service of permanent Government employees has been crystallised in these terms:

'Therefore, it seems that only two exceptions can be treated as valid in dealing with the scope and effect of the protection afforded by Article 311(2). If a permanent public servant is asked to retire on the ground that he has reached the age of superannuation which has been reasonably fixed, Article 311(2) does not apply, because such retirement is neither dismissal nor removal of the public servant. If a permanent public servant is compulsorily retired under the rules which prescribe the normal age of superannuation and provide for a reasonably long period of qualified service after which alone compulsory retirement can be ordered, that again may not amount to dismissal or removal under Article 311(2) mainly because that is the effect of a long series of decisions of this Court.'

15. It has however to be noted that though it has been uniformly held in all these decisions that a compulsory retirement does not amount to dismissal or removal and therefore does not attract the provisions of Article 311(2) of the Constitution, there has been some difference of opinion expressed from time to time as to what should be the necessary requirements to constitute a valid and binding rule in regard to the matter of premature compulsory retirement. Venkata-rama Aiyar J. in the case of AIR 1957 SC 892 while dealing with this question observed,

'Questions of the above character could arise only when the rules fix both an age of superannuation and an age for compulsory retirement and the services of a civil servant are terminated between these two points of time. But where there is no rule fixing the age of compulsory retirement, or if there is one and the servant is retired before the age prescribed therein, then that can be regarded only as dismissal or removal within Article 311(2).'

But in the subsequent decision of the Supreme Court in the case of AIR 1960 SC 1305 this view does not seem to have been accepted. Therein this matter was discussed in the background of Rule 278 of the Patiala State Regulations which, as stated therein did not provide any minimum qualifying period of service after which alone an order for premature compulsory retirement could be made and in the course of that discussion the aforesaid observation of Venkatarama Aiyar J. was explained in these words:--

'In Doshi's case, 1958 SCR 571 = AIR 1957 SC 892 there is at p. 579 (of SCR): (at p. 895 of AIR) an observation which might at first sight seem to suggest that in the opinion of this Court compulsory retirement not amounting to dismissal or removal could only take place under a rule fixing an age for compulsory retirement. We do not think that was what the Court intended to say in Doshi's Case 1958 SCR 571 = AIR 1957 SC 892. In Doshi's case, 1958 SCR 571 = AIR 1957 SC 892 there was in fact a rule fixing an age for compulsory retirement, at the age of 55, and in addition another rule for compulsory retirement after an officer had completed the age of 50 or 25 years of service. It was in that context that the Court made the above observation. It had not in that case to deal with a rule which did provide for compulsory retirement, at any age whatsoever irrespective of the length of service put in.'

16. Thereafter came the decision of the Supreme Court in the case of AIR 1964 SC 600. It is true that therein the question that fell to be decided had no reference to any rule regarding premature compulsory retirement, but the validity of the railway rule which formed the subject matter of discussion in that case was examined in the light of the broader principle which had been taken into consideration earlier in dealing with the validity of a rule relating to premature compulsory retirement, and it was in that background that the aforesaid conflicting views on this point as expressed in AIR 1957 SC 892 and AIR 1960 SC 1305 were discussed and finally what was held in the earlier case of AIR 1957 SC 892 was affirmed and the law was laid down in these words:--

'If any Rule permits the appropriate authority to retire compulsorily a civil servant without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service, that Rule would be invalid and the so-called retirement ordered under the said Rule would amount to removal of the civil servant within the meaning of Article 311(2).'

In affirming that view, however, their Lordships made one express reservation and that was in these words:--

'We ought to make it clear that in the present appeal we are not called upon to consider whether a rule of compulsory retirement would be valid if having fixed a proper age of superannuation it permits a permanent servant to be retired at a very early stage of his career.'

or as alternatively stated,

'In case a rule of compulsory retirement permitted the authority to retire a permanent servant at a very early stage of his career, the question as to whether such a rule would be valid may have to be considered on a proper occasion.'

17. Thereafter this question came up for consideration before the Supreme Court in the case of AIR 1964 SC 1585. Therein the order for premature compulsory retirement of the officer concerned was passed under the second proviso to Article 91 of the Pepsu Service Regulations. The relevant portion of that second proviso stated that,

'Provided further that Government retains an absolute right to retire any Government servant after he has completed ten years qualifying service without giving any reason and no claim to special compensation on this account will be entertained. This right will not be exercised except when it is in public interest to dispense with the further service of a Government servant such as on account of inefficiency, dishonesty, corruption or infamous conduct.'

It is evident that under this proviso the rule of premature compulsory retirement fixed a minimum period of only ten years of qualifying service before which alone an officer could not be called upon to retire. Therefore though prima facie the requisites for the validity of a rule relating to premature compulsory retirement as laid down by Venkatarama Aiyar J. in the case of AIR 1957 SC 892 were fulfilled by that rule, but notwithstanding that, on the basis of the reservation already made in the case of AIR 1964 SC 600 it was contended that the period of 10 years as fixed under the proviso was not a reasonable minimum period of qualifying service, sufficient to protect the rule from the contravention of the safeguards as laid down in Article 311. In answer thereto it was held therein that :--

'It seems that only two exceptions can be treated as valid in dealing with the scope and effect of the protection afforded by Article 311(2). If a permanent public servant is asked to retire on the ground that he has reached the age of superannuation which has been reasonably fixed. Article 311(2) does not apply, because such retirement is neither dismissal nor removal of the public servant. If a permanent public servant is compulsorily retired under the rules which prescribe the normal age of superannuation and provide for a reasonably long period of qualified service after which alone compulsory retirement can be ordered, that again may not amount to dismissal or removal under Article 311(2) mainly because that is the effect of a long series of decisions of this Court. But where while reserving the power to the State to compulsorily retire a permanent public servant, a rule is framed prescribing a proper age of superannuation and another rule is added giving the power to the State to compulsorily retire a permanent public servant at the end of 10 years of his service, that cannot, we think, be treated as falling outside Article 311(2)'.

In other words, as observed therein.

'The acceptance of the doctrine thatrules for compulsory retirement were validand constituted an exception to the generalrule that the termination of the services ofa permanent servant means his removalwithin the meaning of Article 311(2) was notabsolute but qualified--'

qualified in the sense that it is always open to the Court to scrutinise whetherthe minimum period of qualifying servicefixed under the rule relating to prematurecompulsory retirement is reasonable or not.If the minimum period of qualifying service fixed thereunder is not reasonable itwill be struck out as contravening the safeguards given to a Government servantunder Article 311(2). But if it is found reasonable, it will be protected as a valid rulerelating to premature compulsory retirement. The law therefore as it stands todayis that any valid rules relating to prematurecompulsory retirement must satisfy threeconditions --

(1) that the rules have fixed both an age of superannuation and an age for compulsory retirement,

(2) that the services of a civil servant compulsorily retired under the rules are terminated between these two points of time, and

(3) that the minimum period of qualifying service after which alone an order for compulsory retirement can be effected is reasonable.

18. In both the cases before us it is not in dispute that the first two conditions are fully satisfied In both the impugned provisions there is an age of superannuation given, and also there is an age for compulsory retirement; and the petitioners in both the cases have been called upon to retire between those two points of time. There is no dispute raised here that the minimum period of qualifying service up to the age of 55 years after which alone an order of compulsory retirement can be passed under the impugned rules is not reasonable. Rightly therefore it has been contended both by the learned Advocate General and by Mr. D. Mohanty appearing for the petitioners in these two cases that the aforesaid rules relating to premature compulsory retirement whereunder the petitioners were called upon to retire at the age of 55 years are constitutionally valid and not hit by Article 311(2). Accordingly the common contention urged in both these cases on behalf of the petitioners, namely, that the relevant impugned rules authorising their premature compulsory retirement are hit by Article 311(2) of the Constitution cannot be sustained. It is therefore rejected.

19. This disposes of the main point urged in both the cases. We are therefore now left with the other few points which have been advanced in the two cases on behalf of each of the petitioners separately. O. J. C. No. 208 of 1964 is taken up first. In this case the additional points raised are two:--

(1) Whether in the absence of the issue of the amendments to the rules as required by paragraph 7 of the resolution, the resolution had acquired the force of a statutory rule or operated only as an executive instruction:

(2) Whether the operation of the provision made for premature compulsory retirement in the resolution when read along with other similar provisions as laid down in Rule 71(d) of the Orissa Service Code and in Clause 2(2) of Section I of the Liberalised Pension Rules was in the case of the petitioner hit by the equality clause as laid down in Article 14 of the Constitution.

20.It is not disputed that the aforesaid resolution of the Govt. of Orissa dated 21st May 1963 relates to provisions governing the condition of service of persons appointed to services and posts in connection with the affairs of the State and therefore if it is found that it has been made by the Governor or such person as has been authorised in that behalf by the Governor in exercise of the power given to him under the proviso to Article 309 of the Constitution that resolution will have to be accepted as a rule framed thereunder and not a simple executive instruction. The contention however raised by the learned Advocate General is that even if it be held that the resolution has been made in exercise of the power as laid down in the proviso to Article 309 of the Constitution that cannot acquire the force of a statutory rule as provided therein until the condition precedent as laid down in the resolution itself is complied with, namely, until necessary amendments to the rules are issued.

In my opinion, there is no substance in the contention. The Orissa Government Rules of Business made under Article 166 of the Constitution of India has clearly, under its First Schedule, item 9, allocated the subject mentioned therein, namely, 'General conditions of service, affecting all public services in matters of appointment, confirmation, leave, pay, travelling allowance, pension, extension and re-employment, etc, and interpretation of rules pertaining thereto. Retrenchment' to the political and Services Department. Then there is a direction given under Rule 4-A that all matters referred to in the Second Schedule which includes amongst others in item 13(c) 'Proposals for the making or amending of rules regulating the recruitment and the conditions of service of persons appointed to the public services and posts in connection with the affairs of the State' shall ordinarily be considered al a meeting of the Cabinet.

Therefore it is evident that under these provisions of the Orissa Government Rules of Business the ptwer to make rules regulating the conditions of service of persons appointed to the services and posts in connection with the affairs of the State was delegated and allocated by the Governor under Article 166(3) of the Constitution to the Ministry of Political and Service Department of the Government of Orissa and the Govt. of Orissa had, subject to the provision made in Rule 4-A, the necessary power as provided in the proviso to Article 309 of the Constitution, to make rules regulating the conditions of service of persons appointed to services and posts in connection with the affairs of the State. That is why we find that in Rule 6 of the Orissa Service Code it is expressly laid down that 'The State Government reserves the power of interpreting these rules and of changing them from time to time at its discretion'. It has therefore been rightly contended by Mr. R.N. Misra that under these provisions of law it was always open to the Government of Orissa to change the rules and thereby alter the age of superannuation as given in Rule 71 (a) of the Orissa Service Code.

There is no evidence before us nor it has been so claimed by the learned Advocate General that the change in the age of superannuation as given in Rule 71 (a) of the Orissa Service Code from 55 years to 58 years as provided in the resolution was not brought about by the Political and Services Department and in the manner as provided in Rule 4-A of the Rules of Business. On the contrary the notification of the resolution as published in Supplement to the Orissa Gazette dated June 28, 1963 clearly points out that this change was obviously effected by the Political and Services Department and in the manner as provided in Rule 4-A of the Rules of Business. The word 'resolution' as used in that notification is only consistent with the view that the matter was considered at a meeting of the Cabinet and was passed thereafter in the form of a resolution. It may be noted here that though there is the authority given in the proviso to Article 309 of the Constitution for making of rules by the Governor or by such person as directed by him in that behalf, but there is no procedure laid down therein for the exercise of that authority.

This detail as to how that authority is to be exercised is to be found in the Rules of Business made under Article 166 of the Constitution. But neither the proviso to Article 309 of the Constitution nor the Rules of Business lay down any condition that the rule made in exercise of the power given in the proviso to Article 309 of the Constitution shall not be effective or binding until the same has been published or posted up in the relevant Service Code

The question of publication or posting up of rules in such a circumstance is at best a matter of propriety and desirability so that all persons concerned therewith may have necessary notice in regard thereto. But that can not lead to the conclusion that until the publication or posting of the rules is effected, any rule made in exercise of the power given in the proviso to Article 309 of the Constitution shall have no force as a statutory rule as contemplated therein,

But in view of the fact that here this much at least is not disputed that so far as the resolution itself is concerned that was published in the Supplement to the Orissa Gazette dated June 28, 1963, it is not necessary for us to express in this case any concluded opinion on this aspect of the matter relating to publication or as to what is the implication of the provision made in Section 23 of the General Clauses Act 1897 in such circumstances. What however has been contended here by the learned Advocate General is that though the resolution was published but as there was a self-imposed limitation provided therein in paragraph 7 that 'Necessary amendments to the rules will be issued in due course', it did not acquire in the absence of such issue the force of a statutory rule as contemplated in the proviso to Article 309 of the Constitution.

In my opinion, in making this submission, the learned Advocate General has failed to keep in view the distinction between different categories of rules which may be made under the proviso to Article 309 of the Constitution, for example one may be for the purpose of creating substantive rights and liabilities while the other may be for the purpose of incorporating in conformity therewith the consequential changes in the parent rules already in operation on the subject under the Orissa Service Code. But all these rules, whether of one category or the other, once made in exercise of power as laid down in the proviso to Article 309 of the Constitution, become effective and binding ex proprio vigore from the very time they are made, with this difference that as a result of the substantive rules the corresponding provisions of the Service Code already in operation stand amended by implication unless otherwise expressly saved, independently of the consideration whether the consequential changes in accordance therewith are or are not incorporated in the relevant Service Code, while in the latter case they are altered and amended in express terms. The act of incorporating the consequential changes in the relevant Service Code after the enactment of any new substantive rule made under the proviso to Article 309 of the Constitution is mostly a procedural part of the law. No doubt it is expedient and desirable that at least to avoid confusion in the Service Code and at the same time to bring the matter to the notice of the Government Servants concerned succinctly at one place as to how the Service Code stands the consequential changes which are brought about by the substantive rule should be incorporated in the parent Service Code and it is perhaps for that reason that the resolution took care in providing a special direction to the effect that the rules as framed thereunder should be followed up by way of amendments in the Service Code.

It is so is also supported by the view taken on this point in the decisions in AIR 1954 SC 369 I.N. Saksena v. State of M.P. AIR 1964 M. P. 248 and A.J. Patel v. State of Gujarat, AIR 1965 Guj 23 (FB). In the case AIR 1964 SC 369 their Lordships of the Supreme Court while dealing with the effect of subsequent incorporation of the new rule in the Service Code in the form of amendment have observed,

'The real purpose of the incorporation of these rules in the Civil Service Regulations was not to make any new rule at the date of such incorporation but to distribute and post up the rules announced in November 1919 at appropriate places in the Civil Service Regulations for ready reference.'

Therefore even if despite the direction as given in paragraph 7 necessary amendments were not issued or incorporated in the Service Code, that does not deprive the rule of its character as a statutory rule made in exercise of the power given in the proviso to Article 309 of the Constitution. The learned Advocate General has, in support of his contention, laid some stress on the terms of paragraphs V-47 and V-48, sub-paragraph (vi) of the Orissa Secretariat Instructions and relying on them has contended that. they in any case clearly lend support to the view that the expression 'resolution' is only one of the forms of communication used in Government Departments, and therefore it cannot have in the eye of law any weight more than that of an executive instruction.

In my opinion, this contention is without substance. What is decisive in a matter like this is substance and not form, and therefore looked at from that point of view of substance it is clear that the impugned resolution embodying therein rules regulating the conditions of service of persons appointed to services and posts in connection with the affairs of the State was formulated in exercise of the power as provided in the proviso to Article 309 of the Constitution. Accordingly I have no hesitation to hold that the mere absence of any issue of the necessary amendments to the rules can be no ground for holding that though the resolution was passed in exercise of the power as given in the proviso to Article 309 of the Constitution, it did not acquire any validity in law as contemplated in the proviso to Article 309 of the Constitution.

21. There is no contention made before us by the learned Advocate General that the impugned resolution did not conform to the provisions of Article 166(2) of the Constitution, nor 1 think, there could be any as the resolution ex facie points out that it was published by the order of the Governor. Further it is well settled in law that the provisions of Article 166(2) are only directory and not mandatory in character and so even if they had not been complied with it could still be established as a question of fact that the impugned resolution was issued by the State Government vide Chitralekha v. State of Mysore, AIR 1964 SC 1823. Therefore this contention fails.

22. The only other point which is now left for consideration in O. J. C. 208 of 1964 is the point raised on behalf of the petitioner that the order passed by the Government of Orissa calling upon the petitioner to retire with effect from 1-1-65 on attaining the age of 55 years in exercise of the power given to them in that behalf under paragraph 3 of the impugned resolution is hit by Article 14 of the Constitution and as such is void. It is however necessary to note here that this part of the submission made on behalf of the petitioner has not been pressed before us on the ground that the discretion allowed to the relevant authority under paragraph 3 of the resolution to retire a Government servant at the age of 55 years is completely unguided and uncontrolled or that it is so worded that the power conferred by it can be capriciously exercised without offending that provision. Therefore that aspect of the approach to the contention that the impugned order is violative of Article 14 of the Constitution need not be taken into consideration here.

Further on merit also such a contention cannot be successfully advanced, firstly for the reason, as already held above, that the provision made in paragraph 3 of the resolution fully satisfies all the necessary requirements of a rule relating to premature compulsory retirement, as laid down by the Supreme Court in the case of AIR 1964 SC 1585, and secondly for the reason that 'The discrimination', as observed in Jagannath Prasad v. State of Uttar Pradesh, AIR 1961 SC 1245 'which is prohibited by Article 14 is treatment in a manner prejudicial as compared with another person similarly circumstanced by the adoption of a law, substantive or procedural, different from the one applicable to that other person'.

Or in other words as again observed in that verv authority that,

'Equal protection of the law does not postulate equal treatment of all persons without distinction; it merely guarantees the application of the same laws alike and without discrimination to all persons similarly situated. The power of the Legislature to make a distinction between persons or transactions based on a real differentia is not taken away by the equal protection clause.'

23. There is no dispute that the rule relating to premature compulsory retirement is applicable only to those Government employees who are undesirable, may be either for the reason of their inefficiency or misconduct or the like. Therefore they cannot be said to be situated similarly with those who do not suffer from this disqualification and therefore in the normal course they retire after attaining the full period of superannuation. Thus between these two classes of employees, there is a real differentia. That being so, the provision made in paragraph 3 of the aforesaid resolution regarding premature compulsory retirement of Government servants is not hit by Article 14 of the Constitution and as reiterated in Shivacharana v. State, of Mysore AIR 1965 S.C. 280 that from the point of view of Articles 14 and 16(1) of the Constitution also, 'the law in relation to the validity of the rules permitting premature compulsory retirement of Government servants must be held to be well settled by those decisions'. Here therefore what has been attacked is not validity of the provision itself, but the validity of the order passed thereunder as violative of Article 14 of the Constitution.

It is contended that at that time there were simultaneously in operation three sets of independent rules permitting premature compulsory retirement, any of which could be resorted to at the option of the authority against him and as the one adopted in the case of the petitioner was more onerous and harsh the order passed thereunder is hit by Article 14 of the Constitution. The three sets of provisions referred to are:-(i) the provision made in Rule 71 (d) of the Orissa Service Code which came into force on 1-4-39, (ii) the provision made in Rule 2 of Section I of the new Liberalised Pension Rules which came into force on 19-9-51, and (iii) the provision made in paragraph 3 of the aforesaid resolution dated 21st May 1963 The relevant portion of these three provisions read as follows--

'Rule 71 (d) of the Orissa Service Code.--The State Government may require any Government Servant who has completed the twenty-five years of service qualifying for pension under the pension rules applicable to him calculated from the date of first appointment, to retire from Government service, if it considers that his efficiency is not such as to justify his retention in the service; provided that the provisions of this clause shall not apply to any person who was in the service of the Bihar and Orissa Government on the 1st June 1929 unless such person was liable under the rules by which he was previously governed to be called on to retire after completing twenty five years' service.'

'Rule 2 of section I of the Liberalised Pension Rules -- ...... Government may also require an officer to retire any time after he has completed 30 years' qualifying service provided that the appropriate authority shall give in this behalf, a notice in writing the Government servant at least three months before the date on which he is required to retire.'

'Paragraph 3 of the Resolution dated 21st May 1963 -- Notwithstanding anything contained in the preceding paragraph, the appointing authority may require a Government servant to retire after he attains the age of 55 years on three months previous notice in writing without assigning any reason..... The provision will normally be exercised to weed out unsuitable employees after they have attained the age of 55 years. This provision will be in addition to the provisions already contained in Rule 2 of Section I of the Liberalised Pension Rules, issued with the Finance Department Resolution No. 13795-F., dated the 19th September, 1951. ...'

24. In this connection however the learned Advocate General has rightly pointed out that at least so far as the provision made in Rule 71 (d) of the Orissa Service Code. is concerned, that was not applicable to the case of the petitioner and this is so is clear from the terms of Note 1 to paragraph 8 of Section VI of the Liberalised Pension Rules as also from the decision in Chakradhar Mohapatra v. State of Orissa, ILR (1956) Cal 160. Further it cannot be denied that by the time the impugned order was passed, the petitioner had already put in much more than 25 years of service. Therefore his case at that time could be attracted either by Rule 2 of section I of the Liberalised Pension Rules or by Paragraph 3 of the resolution. Had it been effected under the former provision he should have been made to retire from 1-11-67. But as the order against the petitioner was passed under the latter provision, he had to retire with effect from 1-1-65 though under the new rule his normal age of superannuation would have expired on 1-1-68.

25. Therefore relying on the circumstances that his premature compulsory retirement could be effected under either of these two sets of rules, it has been urged that the authority in directing his premature compulsory retirement under paragraph 3 of the resolution which is, as between the two, more stringent and onerous against the petitioner, practised discrimination and in that way he was deprived of the guarantee of equal protection of the laws. In other words, it has been submitted that no guidance having been provided in any of these two sets of rules as to when and under what circumstances the one or the other should be resorted to in the case of a Government employee, the selection of one which is more drastic and prejudicial to the interest of the petitioner in preference to the other set of the provision violated the guarantee given under Article 14 of the Constitution. In support of this contention reliance has been placed by Mr R.N. Misra mainly on the decision in State of Orissa v Dhirendra-nath Das, AIR 1961 S.C. 1715 and on the principles of the decision in AIR 1964 S.C. 600 and Jyoti Pershad v. Administrator for the Union Territory of Delhi, AIR 1961 S.C 1602.

In my opinion, the submission made by Mr. Misra cannot be accepted. It is true that the purpose of vesting power in the relevant authority to retire compulsorily a Government employee under either of these provisions is substantially the same, namely, to weed out inefficient and unsuitable employees. But conditions whereunder these two separate and distinct provisions came into play are not the same but different. It cannot be denied that the ground of inefficiency of a Government employee may be different in different cases and it is also quite understandable that all the employees may not become inefficient at the same point of time -- in the case of one employee this inefficiency may arise when he has put in 30 years of service, but has not yet attained the age of 55 years, while the other may lose his efficiency when he reaches the age of 55 years though he may not have by that time put in 30 years of service. Therefore the two sets of provisions fixing different dates with effect from which an employee can be made to retire compulsorily cannot apply equally to employees similarly situated.

26. It may be noted here that the new provision in paragraph 3 of the resolution was made at the time when the normal age of superannuation was increased from 55 years to 58 years; and perhaps for that reason it was considered necessary that in the case of employees who may not be able to bear the strain of advanced years after 55, there should be a provision made to retire them compulsorily in case they are found inefficient at that age. As observed in AIR 1964 S.C. 600.

'Rules of superannuation which are prescribed in respect of public services in all modern States are based on considerations of life expectation mental capacity of the civil servants having regard to the climatic conditions under which they work, and the nature of the work they do.'

Accordingly in order to avoid inefficiency arising out of the sudden increase in the age of superannuation it was considered necessary that a provision like the one as made in paragraph 3 of the resolution should be provided; for it might have been that in spite of all calculations made, the policy underlying this sudden increase in the age of superannuation from 55 years to 58 years may not have proved successful in all cases. In that case in the absence of any provision as made in paragraph 3 of the resolution the utility of public service would have been very much put to peril.

27. Lastly both these sets of rules are equally applicable to all employees without any discrimination. Therefore on that ground also the existence of the two sets of rules as to premature compulsory retirement cannot be held violative of Article 14 of the Constitution, (vide AIR 1965 S.C. 280, and Blshun Narain v. State of Uttar Pradesh, AIR 1965 SC 1567). And in any case a mere possibility that the discretion vested in the authority to choose either of the two sets of rules in any particular set of circumstances may be misused can be no ground for holding that the order passed in exercise of the rule which of the two is more harsh and stringent will necessarily be violative of Article 14 of the Constitution. The presumption is that the discretion given will be justly and reasonably exercised and for the purpose underlying the rules. In the case of AIR 1961 S.C. 1602 which elaborately deals with the import, content and scope of Article 14, it has been observed that,

'The decisions of this Court laying down the proper construction of Article 14 rendered up to 1959 have been summarised in the form of 5 propositions by Das C. J. in Ramakrishna Dalmia v. S. R. Tendolkar, 1959 SCR 279 at pp. 299-301=AIR 1958 S.C. 538 at pp. 548-549.'

Thereafter it has been stated --

'But we are making a summary on slightly different lines more relevant to the enquiry regarding the provision with which we are concerned in the present case.'

This summary thereunder has been made under four heads. The one which is relevant for our purposes here is what is stated in head No. 3. It reads,

'It is manifest that the above rule would not apply to cases where the legislature lays down the policy and indicates the rule or the line of action which should serve as a guidance to the authority. Where such guidance is expressed in the statutory provision conferring the power, no question of violation of Article 14 could arise, unless it be that the rules themselves or the policy indicated lay down different rules to be applied to persons or things similarly situated. Even where such is not the case, there might be a transgression by the authority of the limits laid down or an abuse of power, but the actual order would be set aside in appropriate proceedings not so much on the ground of a violation of Article 14, but as really being beyond its power.'

In final conclusion this heading has been disposed of in these terms,

'So long, therefore, as the Legislature indicates, in the operative provisions of the statute with certainty, the policy and purpose of the enactment, the mere fact that a discretion is left to those entrusted with administering the law, affords no basis either for the contention that there has been an excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested is un-canalised and unguided as to amount to a carte blanche to discriminate. The second is that if the power or discretion has been conferred in a manner which is legal and constitutional, the fact that Parliament could possibly have made more detailed provisions, could obviously not be a ground for invalidating the law.'

In the rules under consideration before us the purpose and the policy underlying all of them, whether expressly stated or impliedly understood, are the same, namely, to weed out inefficient and undesirable employees. Therefore it cannot be said that the discretion vested in the Government in the matter of choosing any one of the aforesaid two provisions for effecting premature compulsory retirement of a Government employee is uncanalised and unguided as to amount to a carte blanche to discriminate. Therefore, the law as laid down in this authority on the facts of this case is of no avail to Mr. Misra in support of his contention.

27A. The same is the position with ragard to decision in AIR 1964 SC 600. In fact that was not as already stated a case bearing directly on the question of premature compulsory retirement, and what was mainly under discussion in that case was the validity of Rule 148 (3) and Rule 149 (3) of the Railway Establishment Code, 1959, Volume I. Those rules in substance provided that the services of the employees could be at any time terminated on notice on either side for the periods as stated therein. In other words in neither of them there was any minimum period of qualifying service provided for compulsory retirement. Therefore as laid down in AIR 1957 S.C. 892 it could not be a rule relating to compulsory retirement. Further it was conceded therein that no other branch of public service either under the State or under the Union contained any rule which corresponded to those rules. In those circumstances therefore the learned Chief Justice therein observed that,

'The challenge to the validity of the impugned Rules on the ground that they contravene Article 14 must also succeed.'

28. Here, however, we are concerned with the rules which bear on the question of compulsory retirement and it cannot be Contended that the rules governing other branches of public service either under the State or the Union have no corresponding rules. Therefore the ratio of that case can nave no application to the facts of the present case. It is true that there is an observation made therein to the effect that,

'They purport to give no guidance to the authority which would operate the said Rules. No principle is laid down which should guide the decision of the authority in exercising its power under the said Rules. Discretion is left in the authority completely unguided in the matter and the Rules are so worded that the power conferred by them can be capriciously exercised without offending the Rules.'

But on this part of the controversy between the parties there was in the circumstances of that case no opinion expressed therein. Therefore this authority also is of no assistance to the petitioner.

29. The last decision which has been in fact very much relied upon by Mr. Misra is that of AIR 1961 S.C. 1715. Therein the Government employee concerned was at all material times a non-gazetted servant of the State. On November 27, 1953 by an order of the Secretary to the Government of Orissa, Commerce Department he was placed under suspension pending an enquiry. This enquiry at that relevant time could be directed to be made at the discretion of the executive authority under either of the two sets of procedure one laid down in the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951 and the other laid down in the Bihar and Orissa Subordinate Services Discipline and Appeal Rules, 1935. But the procedure which was finally followed in his case resulting in his dismissal from service was the one provided in the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951. The grievance made by the employee was that the procedure laid down in the Disciplinary Proceedings (Administrative Tribunal) Rules 1951 was more drastic and prejudicial to the interest of the employee.

Therefore it was contended as a principle of law that 'If against two public servants similarly circumstanced, enquiries may be directed according to procedures substantially different at the discretion of the Executive authority, exercise whereof is not governed by any principles having any rational relation to the purpose to be achieved by the enquiry, the order selecting a prejudicial procedure out of the two open for selection, is hit by Article 14 of the Constitution.' In the course of discussion on this point their Lordships found as a fact that there was substantial difference in the protection to which the public servant concerned was entitled. Accordingly the aforesaid contention advanced on behalf of the Government employee was accepted and it was held that.

'If against two public servants similarly circumstanced, enquiries may be directed according to procedures substantially different at the discretion of the Executive authority, exercise whereof is not governed by any principles having any rational relation to the purpose to be achieved by the enquiry, the order selecting a prejudicial procedure out of the two open for selection, is hit by Article 14 of the Constitution.'

30. This rule of law as laid down therein was obviously based on two clear assumptions: (1) that any of the two alternative sets of procedures could be applied to any public servant who was proceeded with for any penal action against him, and (2) that the procedures laid down in the two sets of rules from the point of protection to which the public servant was entitled were substantially not the same but different. Neither of these two assumptions is to be found in the case of the present two sets of rules As already discussed, these two sets of rules are not applicable equally to employees similarly situated. Secondly so far as the procedure laid down in either of the two provisions is concerned, that is the same, namely, 3 months' previous notice in writing.

Therefore it cannot be said that the protection given in the matter of procedure under one provision is more drastic and prejudicial than the procedure given in the other provision. The difference, if any, is as to the date with effect from which under the two sets of provisions the petitioner could be made to retire. This difference in the date will vary from case to case and will depend not only any unguided discretion vested in the executive authority who is empowered to retire the public servant compulsorily, but on the date when after completing the minimum period of qualifying service the public servant becomes inefficient or undesirable. The authority in AIR 1961 S.C. 1715 also therefore is of no assistance in deciding the matter which is before us.

31. Lastly it has to be noted that subsequently in the case of AIR 1961 S.C. 1245 the authenticity of this decision was much explained away and thereafter in the case of State of Orissa v. Bidyabhusan, AIR 1963 SC 779 it was for all practical purposes doubted. It is true that in both of them the decision was mainly rested on the assumption that there was no difference in the protection given to the public servant, in the matter of procedure as provided in either of them. But all the same this much is clear that in neither of these cases the authority of AIR 1961 S.C. 1715 was followed. This exhausts all the contentions made on behalf of the petitioner in that case.

32. Next we come to the additional point raised in O. J. C. 272 of 1965. This additional point relates to the question of the validity of the notice issued against the petitioner of this case in pursuance of the provision made in paragraph 6 of the office memorandum. It is the admitted case of the parties as already stated that though originally the change in the rules relating to the age of compulsory retirement was effected by the office memorandum on 30-11-62, but subsequently necessary amendments in accordance therewith were incorporated on 21st July 1965 in the Fundamental Rules by Fundamental (Sixth Amendment) Rules 1965. The submission made by Mr. Das is that though the provisions made both in the office memorandum and in the Fundamental (Sixth Amendment) Rules 1965 in respect of premature compulsory retirement are substantially the same, but they were in the nature of two independent rules, one having nothing to do with the other.

Therefore it is contended by the learned counsel that the notice issued on 15-7-65 against his client in exercise of the power given to the Government under paragraph 6 of the office memorandum ceased to have legal validity on 22-7-65 when that notice was served on the petitioner, for in the meantime on 21-7-65 the provisions made in the office memorandum already stood substituted by those incorporated in the Fundamental (Sixth Amendment) Rules 1965. Therefore, the order passed against his client on the basis of this invalid notice calling upon him to retire with effect from 21-30-65 is said to be void and without jurisdiction. In my opinion, this contention also is equally unsustainable in law.

33. This much is true that no action could in law be taken against any public servant in exercise of the power given under paragraph 6 of the office memorandum unless three months' notice was given to him. In other words, the provision made therein for three months' notice is sine qua non for the validity of the order made in exercise of the power given thereunder. But that is not the point in controversy here. The point that is raised in this case for consideration is whether the provisions made in the Fundamental (Sixth Amendment) Rules 1965 are only enabling directions to incorporate and post up the necessary provisions of the office memorandum in the Fundamental Rules at their proper places or they are altogether independent rules without deriving any sanction from the provisions already made to that effect in the office memorandum.

In view of the principles already discussed in this connection in O. J. C. 208 of 1964, there can be no escape from the conclusion that the provisions made in the office memorandum as to the increase of the normal age of superannuation and premature compulsory retirement had ex pro-prio vigore the character of statutory rules contemplated under the proviso to Article 309 of the Constitution, and are not mere administrative orders or executive instructions. It is true that the Fundamental (Sixth Amendment) Rules 1965 were also statutory rules framed in exercise of the same power given in the proviso to Article 309 of the Constitution. But the provisions made therein were not any independent rules either in regard to the increase in the age of superannuation or in regard to premature compulsory retirement. On the contrary, the Fundamental (Sixth Amendment Rules 1965 were enacted only to incorporate in the Fundamental Rules the new provisions which had already been made under the office memorandum. The law laid down in the case of AIR 1954 S.C. 369 is a clear authority on this point. It is true that the provisions of law that were under consideration there were different, but they were in all respects similar to what we have here under discussion. In that view of the matter, the ratio of that case is on all fours applicable to the point raised in the present case. The learned Chief Justice, while dealing with this point in that case, observed.

'The purpose of publishing the new rules in the form of amendments to the Civil Service Regulations, as Resolution No. 714 C.S.R. itself stated expressly was only to clarify the exact scope of those new rules and not, as suggested by learned counsel for the appellant, to bring them into force for the first time. The new rules came into operation ex proprio vigore on their publication in Official Gazette on the 15th November 1919 and their subsequent publication for general information in the form of amendment to the Civil Service Regulations only served to make their exact scope clear. The real purpose of the incorporation of these rules in the Civil Service Regulations was not to make any new rule at the date of such incorporation but to distribute and post up the rules announced in November 1919 at appropriate places in the Civil Service Regulations for ready reference.'

Such being the position it is clear that the 21st July 1965 when the Fundamental (Sixth Amendment) Rules 1965 was notified, did not bring about any new change in the rules as to the increase in the age of superannuation or as to the matter of premature compulsory retirement. They had already been in existence since 30-11-62. What the notification did was that it got emended the Fundamental Rules in the light of the provisions already made in the office memorandum. Therefore the notice though issued against the petitioner on 15-7-65 in exercise of the power given under paragraph 6 of the office memorandum, did not lose its validity on 22-7-65 but continued to have the same force and validity as it had before.

34. Before however I conclude the discussion relating to O.J.C. 272 of 1965, it is necessary to mention that apart from this there were two other small points also which were, though very feebly, attempted to be stressed in support of the challenge against the validity of the notice:

(1) that the notice having been issued on 15-7-65 when the petitioner was yet below 55 years could not be operative against him;

(2) that there being no statement made in the notice to the effect that the order of premature compulsory retirement was made in the public interest as required under Rule 56 (j) of the Fundamental (Sixth Amendment) Rules 1965, it contravened one of the essential requirements of the rule and therefore the order passed on the basis of such a notice was void.

35. The first point is to be disposed of on the simple ground that in Note 2 to Rule 56 (k) of the Fundamental Rules as it now stands after its amendment by the Fundamental (Sixth Amendment) Rules 1965. there is a specific provision given to the effect that,

'The three months' notice referred to in Clause (j) or Clause (k) may be given before the Government servant attains the age of fifty-five years provided that the retirement takes place after he has attained the age.'

It is not denied that the date with effect from which in the present case the petitioner was asked to retire fell beyond his age of 55 years. Therefore in the face of the aforesaid provision the contention made as to the invalidity of the notice on the ground that the notice was issued at a point of time when the petitioner was not yet 55 years old is not sustainable in law. (36) Then as to the other point, though it is true that in the case of State of Mysore v. Padmanabhacharya, AIR 1966 S.C. 602 there is an observation made to the effect that,

'Before the respondents in the present appeals could be retired at the age of 55 years, the Director of Public Instruction or the Government, as the case may be, had to come to the conclusion that they had not a good record of service and were not upto the mark. If such a conclusion was not arrived at, they would be entitled under Note 4 to continue in service upto the age of 58 years. It is not disputed on behalf of the appellant that no such decision, namely, that the respondents had not a good record of service and were not upto the mark, was taken.'

But it has to be noted that this observation was made in that case in the background of Note 4 to Rule 294 (a), Mysore Service Regulations as also in the background of the admitted fact that there was no decision taken that the Government employees had not a good record of service and were not upto the mark. That is not the position here. On the contrary, in the present case there is a clear averment made in the counter affidavit filed on behalf of the Union of India that the impugned order was made in the public interest. Therefore the aforesaid observation has no application to the facts of the present case. It is true that Rule 56 (j) of the Fundamental (Sixth Amendment) Rules 1965 does provide that the power given thereunder can be exercised only when the authority is of opinion that it is necessary to be done in the public interest, but that does not make the recording of that opinion in the notice as a condition precedent for the exercise of that power, As observed in the case of AIR J965 S.C. 280:

'It would be idle to contend that if the impugned note is valid, the order terminating the services of the petitioner can still be challenged on the ground that it is not justified on the merits or is illegal or arbitrary. Whether or not the petitioner's retirement was in the public interest, is a matter for the State Government to consider.'

That is so is also supported by the terms of the provision made in Rule 56 (j) of the Fundamental (Sixth Amendment) Rules 1965 which say that 'the appropriate authority shall have the absolute right to retire any Government servant after he has attained the age of fifty-five years by giving him notice of not less than three months in writing'. Therefore the opinion that the order is necessary in the public interest may be the background or a very good guidance for the exercise of the authority vested under the aforesaid provision, but is not the basis for the exercise of that authority. The basis of the authority is the absolute right given thereunder to retire any Government servant after he has attained the age of 55 years by giving him notice of not less than three months in writing. As such all that the exercise of such absolute right demands is only (1) that the premature compulsory retirement should be ordered with effect from the date when an employee has already attained the age of 55 years, (2) that it must be preceded by a notice of not less than three months in writing. Therefore the mere absence of the statement made in the notice to the effect that the order of compulsory retirement was passed in the public interest is not fatal to its validity. So this contention also has to be rejected.

37. For these reasons, we hold that neither of the two cases has any substance. Accordingly they are dismissed with costs. Hearing fee in each of them Rs. 250/- (two hundred & fifty).